CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 novembre 1991

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THE UNITED KINGDOM (No. 2)   (Application no. 13166/87)             JUDGMENT       STRASBOURG   26 November 1991   In the case of The Sunday Times v. the United Kingdom (no. 2) [] , The European Court of Human Rights, taking its decision in plenary session in pursuance of Rule 51 of the Rules of Court [] [] and composed of the following judges:   Mr   R. Ryssdal , President ,   Mr   J. Cremona ,   Mr   Thór Vilhjálmsson ,   Mrs   D. Bindschedler-Robert ,   Mr   F. Gölcüklü ,   Mr   F. Matscher ,   Mr   J. Pinheiro Farinha ,   Mr   L.-E. Pettiti ,   Mr   B. Walsh ,   Sir   Vincent Evans ,   Mr   R. Macdonald ,   Mr   C. Russo ,   Mr   R. Bernhardt ,   Mr   A. Spielmann ,   Mr   J. De Meyer ,   Mr   N. Valticos ,   Mr   S. K. Martens ,   Mrs   E. Palm ,   Mr   I. Foighel ,   Mr   R. Pekkanen ,   Mr   A.N. Loizou ,   Mr   J. M. Morenilla ,   Mr   F. Bigi ,   Mr   A. Baka , and also of Mr M.-A. Eissen , Registrar , and Mr H. Petzold , Deputy Registrar , Having deliberated in private on 28 June and 24 October 1991, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.    The case was referred to the Court on 12 October 1990 by the European Commission of Human Rights ("the Commission") and on 23 November 1990 by the Government of the United Kingdom of Great Britain and Northern Ireland ("the Government"), within the three-month period laid down in Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It originated in an application (no. 13166/87) against the United Kingdom lodged with the Commission under Article 25 (art. 25) on 31 July 1987 by Times Newspapers Ltd, a company incorporated in England, and Mr Andrew Neil, a British citizen. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46) and the Government’s application, to Article 48 (art. 48). The object of the request and the application was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Article 10 (art. 10) and also, in the case of the request, Articles 13 and 14 (art. 13, art. 14) of the Convention. 2.    In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicants stated that they wished to take part in the proceedings and designated the lawyers who would represent them (Rule 30). 3.    On 15 October 1990 the President of the Court decided, under Rule 21 para. 6 and in the interest of the proper administration of justice, that a single Chamber should be constituted to consider both the instant case and the Observer and Guardian case [] . The Chamber thus constituted included ex officio Sir Vincent Evans, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 26 October 1990 the President drew by lot, in the presence of the Registrar, the names of the seven other members, namely Mr J. Cremona, Mrs D. Bindschedler-Robert, Mr F. Matscher, Mr R. Macdonald, Mr C. Russo, Mr R. Bernhardt and Mr R. Pekkanen (Article 43 [] in fine of the Convention and Rule 21 para. 4) (art. 43). 4.    Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Registrar, consulted the Agent of the Government, the Delegate of the Commission and the representatives of the applicants on the need for a written procedure (Rule 37 para. 1) and the date of the opening of the oral proceedings (Rule 38). In accordance with the President’s orders and directions, the registry received, on 2 April 1991, the applicants’ memorial and, on 18 April, the Government’s. By letter of 31 May 1991, the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing. 5.    On 21 March 1991 the Chamber decided, pursuant to Rule 51, to relinquish jurisdiction forthwith in favour of the plenary Court. 6.    On 25 March 1991 the President granted, under Rule 37 para. 2, leave to "Article 19" (the International Centre against Censorship) to submit written comments on a specific issue arising in the case. He directed that the comments should be filed by 15 May 1991; they were, in fact, received on that date. 7.    As directed by the President, the hearing, devoted to the present and the Observer and Guardian cases, took place in public in the Human Rights Building, Strasbourg, on 25 June 1991. The Court had held a preparatory meeting beforehand. There appeared before the Court: - for the Government   Mrs A. Glover , Legal Counsellor,       Foreign and Commonwealth Office,             Agent ,   Mr N. Bratza , Q.C.,   Mr P. Havers , Barrister-at-Law,   Counsel ,   Mrs S. Evans , Home Office,   Mr D. Brummell , Treasury Solicitor,   Advisers ; - for the Commission   Mr E. Busuttil ,   Delegate ; - for the applicants in the present case   Mr A. Lester , Q.C.,   Mr D. Pannick , Barrister-at-Law,   Counsel ,   Mr M. Kramer ,   Ms K. Rimell , Solicitors,   Mr A. Whitaker , Legal Manager,       Times Newspapers Ltd,                   Adviser ; - for the applicants in the Observer and Guardian case   Mr D. Browne , Q.C.,   Counsel ,   Mrs J. McDermott , Solicitor. The Court heard addresses by Mr Bratza for the Government, by Mr Busuttil for the Commission and by Mr Lester and Mr Browne for the applicants, as well as replies to questions put by the President of the Court. 8.    The registry received, on 5 August 1991, the observations of the Government on the applicants’ claim under Article 50 (art. 50) of the Convention and, on 13 September and on 4 and 7 October respectively, the applicants’ comments on those observations and further particulars of their claim. By letter of 3 October, a Deputy to the Secretary to the Commission informed the Registrar that the Delegate had no comments on this issue. AS TO THE FACTS I.    INTRODUCTION A. The applicants 9.    The applicants in this case (who are hereinafter together referred to as "S.T.") are Times Newspapers Ltd, the publisher of the United Kingdom national Sunday newspaper The Sunday Times, and Mr Andrew Neil, its editor. They complain of interlocutory injunctions imposed by the English courts on the publication of details of the book Spycatcher and information obtained from its author, Mr Peter Wright. B. Interlocutory injunctions 10.    In litigation where the plaintiff seeks a permanent injunction against the defendant, the English courts have a discretion to grant the plaintiff an "interlocutory injunction" (a temporary restriction pending the determination of the dispute at the substantive trial) which is designed to protect his position in the interim. In that event the plaintiff will normally be required to give an undertaking to pay damages to the defendant should the latter succeed at the trial. The principles on which such injunctions will be granted - to which reference was made in the proceedings in the present case - were set out in American Cyanamid Co. v. Ethicon Ltd([1975] Appeal Cases 396) and may be summarised as follows. (a)    It is not for the court at the interlocutory stage to seek to determine disputed issues of fact or to decide difficult questions of law which call for detailed argument and mature consideration. (b)    Unless the material before the court at that stage fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction, the court should consider, in the light of the particular circumstances of the case, whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. (c)    If damages would be an adequate remedy for the plaintiff if he were to succeed at the trial, no interlocutory injunction should normally be granted. If, on the other hand, damages would not provide an adequate remedy for the plaintiff but would adequately compensate the defendant under the plaintiff’s undertaking if the defendant were to succeed at the trial, there would be no reason to refuse an interlocutory injunction on this ground. (d)    It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience arises. (e)    Where other factors appear evenly balanced, it is a counsel of prudence to take such measures as are calculated to preserve the status quo. C. Spycatcher 11.    Mr Peter Wright was employed by the British Government as a senior member of the British Security Service (MI5) from 1955 to 1976, when he resigned. Subsequently, without any authority from his former employers, he wrote his memoirs, entitled Spycatcher, and made arrangements for their publication in Australia, where he was then living. The book dealt with the operational organisation, methods and personnel of MI5 and also included an account of alleged illegal activities by the Security Service. He asserted therein, inter alia, that MI5 conducted unlawful activities calculated to undermine the 1974-1979 Labour Government, burgled and "bugged" the embassies of allied and hostile countries and planned and participated in other unlawful and covert activities at home and abroad, and that Sir Roger Hollis, who led MI5 during the latter part of Mr Wright’s employment, was a Soviet agent. Mr Wright had previously sought, unsuccessfully, to persuade the British Government to institute an independent inquiry into these allegations. In 1987 such an inquiry was also sought by, amongst others, a number of prominent members of the 1974-1979 Labour Government, but in vain. 12.    Part of the material in Spycatcher had already been published in a number of books about the Security Service written by Mr Chapman Pincher. Moreover, in July 1984 Mr Wright had given a lengthy interview to Granada Television (an independent television company operating in the United Kingdom) about the work of the service and the programme was shown again in December 1986. Other books and another television programme on the workings and secrets of the service were produced at about the same time, but little Government action was taken against the authors or the media. D. Institution of proceedings in Australia 13.    In September 1985 the Attorney General of England and Wales ("the Attorney General") instituted, on behalf of the United Kingdom Government, proceedings in the Equity Division of the Supreme Court of New South Wales, Australia, to restrain publication of Spycatcher and of any information therein derived from Mr Wright’s work for the Security Service. The claim was based not on official secrecy but on the ground that the disclosure of such information by Mr Wright would constitute a breach of, notably, his duty of confidentiality under the terms of his employment. On 17 September he and his publishers, Heinemann Publishers Australia Pty Ltd, gave undertakings, by which they abided, not to publish pending the hearing of the Government’s claim for an injunction. Throughout the Australian proceedings the Government objected to the book as such; they declined to indicate which passages they objected to as being detrimental to national security. II.    THE INTERLOCUTORY PROCEEDINGS IN ENGLAND AND EVENTS OCCURRING WHILST THEY WERE IN PROGRESS A. The Observer and Guardian articles and the ensuing injunctions 14.    Whilst the Australian proceedings were still pending, the United Kingdom national Sunday newspaper Observer and the United Kingdom national daily newspaper The Guardian published, on Sunday 22 and Monday 23 June 1986 respectively, short articles on inside pages reporting on the forthcoming hearing in Australia and giving details of some of the contents of the manuscript of Spycatcher. These two newspapers had for some time been conducting a campaign for an independent investigation into the workings of the Security Service. The details given included the following allegations of improper, criminal and unconstitutional conduct on the part of MI5 officers: (a)    MI5 "bugged" all diplomatic conferences at Lancaster House in London throughout the 1950’s and 1960’s, as well as the Zimbabwe independence negotiations in 1979; (b)    MI5 "bugged" diplomats from France, Germany, Greece and Indonesia, as well as Mr Kruschev’s hotel suite during his visit to Britain in the 1950’s, and was guilty of routine burglary and "bugging" (including the entering of Soviet consulates abroad); (c)    MI5 plotted unsuccessfully to assassinate President Nasser of Egypt at the time of the Suez crisis; (d)    MI5 plotted against Harold Wilson during his premiership from 1974 to 1976; (e)    MI5 (contrary to its guidelines) diverted its resources to investigate left-wing political groups in Britain. The Observer and Guardian articles, which were written by Mr David Leigh and Mr Paul Lashmar and by Mr Richard Norton-Taylor respectively, were based on investigations by these journalists from confidential sources and not on generally available international press releases or similar material. However, much of the actual information in the articles had already been published elsewhere (see paragraph 12 above). The English courts subsequently inferred that, on the balance of probabilities, the journalists’ sources must have come from the offices of the publishers of Spycatcher or the solicitors acting for them and the author (see the judgment of 21 December 1987 of Mr Justice Scott; paragraph 40 below). 15.    The Attorney General instituted proceedings for breach of confidence in the Chancery Division of the High Court of Justice of England and Wales against The Observer Ltd, the proprietors and publishers of the Observer, Mr Donald Trelford, its editor, and Mr Leigh and Mr Lashmar, and against Guardian Newspapers Ltd, the proprietors and publishers of The Guardian, Mr Peter Preston, its editor, and Mr Norton-Taylor. The Attorney General sought permanent injunctions against the defendants (who are hereinafter together referred to as "O.G."), restraining them from making any publication of Spycatcher material. He based his claim on the principle that the information in the memoirs was confidential and that a third party coming into possession of information knowing that it originated from a breach of confidence owed the same duty to the original confider as that owed by the original confidant. It was accepted that an award of damages would have been an insufficient and inappropriate remedy for the Attorney General and that only an injunction would serve his purpose. 16.    The evidential basis for the Attorney General’s claim was two affidavits sworn by Sir Robert Armstrong, Secretary to the British Cabinet, in the Australian proceedings on 9 and 27 September 1985. He had stated therein, inter alia, that the publication of any narrative based on information available to Mr Wright as a member of the Security Service would cause unquantifiable damage, both to the service itself and to its officers and other persons identified, by reason of the disclosures involved. It would also undermine the confidence that friendly countries and other organisations and persons had in the Security Service and create a risk of other employees or former employees of that service seeking to publish similar information. 17.    On 27 June 1986 ex parte interim injunctions were granted to the Attorney General restraining any further publication of the kind in question pending the substantive trial of the actions. On an application by O.G. and after an inter partes hearing on 11 July, Mr Justice Millett (sitting in the Chancery Division) decided that these injunctions should remain in force, but with various modifications. The defendants were given liberty to apply to vary or discharge the orders on giving twenty-four hours’ notice. 18.    The reasons for Mr Justice Millett’s decision may be briefly summarised as follows. (a)    Disclosure by Mr Wright of information acquired as a member of the Security Service would constitute a breach of his duty of confidentiality. (b)    O.G. wished to be free to publish further information deriving directly or indirectly from Mr Wright and disclosing alleged unlawful activity on the part of the Security Service, whether or not it had been previously published. (c)    Neither the right to freedom of speech nor the right to prevent the disclosure of information received in confidence was absolute. (d)    In resolving, as in the present case, a conflict between the public interest in preventing and the public interest in allowing such disclosure, the court had to take into account all relevant considerations, including the facts that this was an interlocutory application and not the trial of the action, that the injunctions sought at this stage were only temporary and that the refusal of injunctive relief might cause irreparable harm and effectively deprive the Attorney General of his rights. In such circumstances, the conflict should be resolved in favour of restraint, unless the court was satisfied that there was a serious defence of public interest that might succeed at the trial: an example would be when the proposed publication related to unlawful acts, the disclosure of which was required in the public interest. This could be regarded either as an exception to the American Cyanamid principles (see paragraph 10 above) or their application in special circumstances where the public interest was invoked on both sides. (e)    The Attorney General’s principal objection was not to the dissemination of allegations about the Security Service but to the fact that those allegations were made by one of its former employees, it being that particular fact which O.G. wished to publish. There was credible evidence (in the shape of Sir Robert Armstrong’s affidavits; see paragraph 16 above) that the appearance of confidentiality was essential to the operation of the Security Service and that the efficient discharge of its duties would be impaired, with consequent danger to national security, if senior officers were known to be free to disclose what they had learned whilst employed by it. Although this evidence remained to be tested at the substantive trial, the refusal of an interlocutory injunction would permit indirect publication and permanently deprive the Attorney General of his rights at the trial. Bearing in mind, inter alia, that the alleged unlawful activities had occurred some time in the past, there was, moreover, no compelling interest requiring publication immediately rather than after the trial. In the subsequent stages of the interlocutory proceedings, both the Court of Appeal (see paragraphs 19 and 34 below) and all the members of the Appellate Committee of the House of Lords (see paragraphs 35-36 below) considered that this initial grant of interim injunctions by Mr Justice Millett was justified. 19.    On 25 July 1986 the Court of Appeal dismissed an appeal by O.G. and upheld the injunctions, with minor modifications. It referred to the American Cyanamid principles (see paragraph 10 above) and considered that Mr Justice Millett had not misdirected himself or exercised his discretion on an erroneous basis. It refused leave to appeal to the House of Lords. It also certified the case as fit for a speedy trial. As amended by the Court of Appeal, the injunctions ("the Millett injunctions") restrained O.G., until the trial of the action or further order, from: "1.    disclosing or publishing or causing or permitting to be disclosed or published to any person any information obtained by Peter Maurice Wright in his capacity as a member of the British Security Service and which they know, or have reasonable grounds to believe, to have come or been obtained, whether directly or indirectly, from the said Peter Maurice Wright; 2.    attributing in any disclosure or publication made by them to any person any information concerning the British Security Service to the said Peter Maurice Wright whether by name or otherwise." The orders contained the following provisos: "1.    this Order shall not prohibit direct quotation of attributions to Peter Maurice Wright already made by Mr Chapman Pincher in published works, or in a television programme or programmes broadcast by Granada Television; 2.    no breach of this Order shall be constituted by the disclosure or publication of any material disclosed in open court in the Supreme Court of New South Wales unless prohibited by the Judge there sitting or which, after the trial there in action no. 4382 of 1985, is not prohibited from publication; 3.    no breach of this Order shall be constituted by a fair and accurate report of proceedings in (a) either House of Parliament in the United Kingdom whose publication is permitted by that House; or (b) a court of the United Kingdom sitting in public." 20.    On 6 November 1986 the Appellate Committee of the House of Lords granted leave to appeal against the Court of Appeal’s decision. The appeal was subsequently withdrawn in the light of the House of Lords decision of 30 July 1987 (see paragraphs 35-36 below). B. The first-instance decision in Australia 21.    The trial of the Government’s action in Australia (see paragraph 13 above) took place in November and December 1986. The proceedings were reported in detail in the media in the United Kingdom and elsewhere. In a judgment delivered on 13 March 1987 Mr Justice Powell rejected the Attorney General’s claim against Mr Wright and his publishers, holding that much of the information in Spycatcher was no longer confidential and that publication of the remainder would not be detrimental to the British Government or the Security Service. The undertakings not to publish were then discharged by order of the court. The Attorney General lodged an appeal; after a hearing in the New South Wales Court of Appeal in the week of 27 July 1987, judgment was reserved. The defendants had given further undertakings not to publish whilst the appeal was pending. C. Further press reports concerning Spycatcher; the Independent case 22.    On 27 April 1987 a major summary of certain of the allegations in Spycatcher, allegedly based on a copy of the manuscript, appeared in the United Kingdom national daily newspaper The Independent. Later the same day reports of that summary were published in The London Evening Standard and the London Daily News. On the next day the Attorney General applied to the Queen’s Bench Division of the High Court for leave to move against the publishers and editors of these three newspapers for contempt of court that is conduct intended to interfere with or prejudice the administration of justice. Leave was granted on 29 April. In this application (hereinafter referred to as "the Independent case") the Attorney General was not acting - as he was in the breach of confidence proceedings against O.G. - as the representative of the Government, but independently and in his capacity as "the guardian of the public interest in the due administration of justice". Reports similar to those of 27 April appeared on 29 April in Australia, in The Melbourne Age and the Canberra Times, and on 3 May in the United States of America, in The Washington Post. 23.    On 29 April 1987 O.G. applied for the discharge of the Millett injunctions (see paragraph 19 above) on the ground that there had been a significant change of circumstances since they were granted. They referred to what had transpired in the Australian proceedings and to the United Kingdom newspaper reports of 27 April. The Vice-Chancellor, Sir Nicolas Browne-Wilkinson, began to hear these applications on 7 May but adjourned them pending the determination of a preliminary issue of law, raised in the Independent case (see paragraph 22 above), on which he thought their outcome to be largely dependent, namely "whether a publication made in the knowledge of an outstanding injunction against another party, and which if made by that other party would be in breach thereof, constitutes a criminal contempt of court upon the footing that it assaults or interferes with the process of justice in relation to the said injunction". On 11 May, in response to the Vice-Chancellor’s invitation, the Attorney General pursued the proceedings in the Independent case in the Chancery Division of the High Court and the Vice-Chancellor ordered the trial of the preliminary issue. 24.    On 14 May 1987 Viking Penguin Incorporated, which had purchased from Mr Wright’s Australian publishers the United States publication rights to Spycatcher, announced its intention of publishing the book in the latter country. 25.    On 2 June 1987 the Vice-Chancellor decided the preliminary issue of law in the Independent case. He held that the reports that had appeared on 27 April 1987 (see paragraph 22 above) could not, as a matter of law, amount to contempt of court because they were not in breach of the express terms of the Millett injunctions and the three newspapers concerned had not been a party to those injunctions or to a breach thereof by the persons they enjoined. The Attorney General appealed. 26.    On 15 June 1987 O.G., relying on the intended publication in the United States, applied to have the hearing of their application for discharge of the Millett injunctions restored (see paragraph 23 above). The matter was, however, adjourned pending the outcome of the Attorney General’s appeal in the Independent case, the hearing of which began on 22 June. D. Serialisation of Spycatcher begins in The Sunday Times 27.    On 12 July 1987 The Sunday Times, which had purchased the British newspaper serialisation rights from Mr Wright’s Australian publishers and obtained a copy of the manuscript from Viking Penguin Incorporated in the United States, printed – in its later editions in order to avoid the risk of proceedings for an injunction - the first instalment of extracts from Spycatcher. It explained that this was timed to coincide with publication of the book in the United States, which was due to take place on 14 July. On 13 July the Attorney General commenced proceedings against S.T. for contempt of court, on the ground that the publication frustrated the purpose of the Millett injunctions. E. Publication of Spycatcher in the United States of America 28.    On 14 July 1987 Viking Penguin Incorporated published Spycatcher in the United States of America; some copies had, in fact, been put on sale on the previous day. It was an immediate best-seller. The British Government, which had been advised that proceedings to restrain publication in the United States would not succeed, took no legal action to that end either in that country or in Canada, where the book also became a best-seller. 29.    A substantial number of copies of the book were then brought into the United Kingdom, notably by British citizens who had bought it whilst visiting the United States or who had purchased it by telephone or post from American bookshops. The telephone number and address of such bookshops willing to deliver the book to the United Kingdom were widely advertised in that country. No steps to prevent such imports were taken by the British Government, which formed the view that although a ban was within their powers, it was likely to be ineffective. They did, however, take steps to prevent the book’s being available at United Kingdom booksellers or public libraries. F. Conclusion of the Independent case 30.    On 15 July 1987 the Court of Appeal announced that it would reverse the judgment of the Vice-Chancellor in the Independent case (see paragraph 25 above). Its reasons, which were handed down on 17 July, were basically as follows: the purpose of the Millett injunctions was to preserve the confidentiality of the Spycatcher material until the substantive trial of the actions against O.G.; the conduct of The Independent, The London Evening Standard and the London Daily News could, as a matter of law, constitute a criminal contempt of court because publication of that material would destroy that confidentiality and, hence, the subject-matter of those actions and therefore interfere with the administration of justice. The Court of Appeal remitted the case to the High Court for it to determine whether the three newspapers had acted with the specific intent of so interfering (sections 2(3) and 6(c) of the Contempt of Court Act 1981). 31.    The Court of Appeal refused the defendants leave to appeal to the House of Lords and they did not seek leave to appeal from the House itself. Neither did they apply to the High Court for modification of the Millett injunctions. The result of the Court of Appeal’s decision was that those injunctions were effectively binding on all the British media, including The Sunday Times. G. Conclusion of the interlocutory proceedings in the Observer, Guardian and Sunday Times cases; maintenance of the Millett injunctions 32.    S.T. made it clear that, unless restrained by law, they would publish the second instalment of the serialisation of Spycatcher on 19 July 1987. On 16 July the Attorney General applied for an injunction to restrain them from publishing further extracts, maintaining that this would constitute a contempt of court by reason of the combined effect of the Millett injunctions and the decision in the Independent case (see paragraph 30 above). On the same day the Vice-Chancellor granted a temporary injunction restraining publication by S.T. until 21 July 1987. It was agreed that on 20 July he would consider the application by O.G. for discharge of the Millett injunctions (see paragraph 26 above) and that, since they effectively bound S.T. as well, the latter would have a right to be heard in support of that application. It was further agreed that he would also hear the Attorney General’s claim for an injunction against S.T. and that that claim would fail if the Millett injunctions were discharged. 33.    Having heard argument from 20 to 22 July 1987, the Vice-Chancellor gave judgment on the last-mentioned date, discharging the Millett injunctions and dismissing the claim for an injunction against S.T. The Vice-Chancellor’s reasons may be briefly summarised as follows. (a)    There had, notably in view of the publication in the United States (see paragraphs 28-29 above), been a radical change of circumstances, and it had to be considered if it would be appropriate to grant the injunctions in the new circumstances. (b)    Having regard to the case-law and notwithstanding the changed circumstances, it had to be assumed that the Attorney General still had an arguable case for obtaining an injunction against O.G. at the substantive trial; accordingly, the ordinary American Cyanamid principles (see paragraph 10 above) fell to be applied. (c)    Since damages would be an ineffective remedy for the Attorney General and would be no compensation to the newspapers, it had to be determined where the balance of convenience lay; the preservation of confidentiality should be favoured unless another public interest outweighed it. (d)    Factors in favour of continuing the injunctions were: the proceedings were only interlocutory; there was nothing new or urgent about Mr Wright’s allegations; the injunctions would bind all the media, so that there would be no question of discrimination; undertakings not to publish were still in force in Australia; to discharge the injunctions would mean that the courts were powerless to preserve confidentiality; to continue the injunctions would discourage others from following Mr Wright’s example. (e)    Factors in favour of discharging the injunctions were: publication in the United States had destroyed a large part of the purpose of the Attorney General’s actions; publications in the press, especially those concerning allegations of unlawful conduct in the public service, should not be restrained unless this was unavoidable; the courts would be brought into disrepute if they made orders manifestly incapable of achieving their purpose. (f)    The matter was quite nicely weighted and in no sense obvious but, with hesitation, the balance fell in favour of discharging the injunctions. The Attorney General immediately appealed against the Vice-Chancellor’s decision; pending the appeal the injunctions against O.G., but not the injunction against S.T. (see paragraph 32 above), were continued in force. 34.    In a judgment of 24 July 1987 the Court of Appeal held that: (a)    the Vice-Chancellor had erred in law in various respects, so that the Court of Appeal could exercise its own discretion; (b)    in the light of the American publication of Spycatcher, it was inappropriate to continue the Millett injunctions in their original form; (c)    it was, however, appropriate to vary these injunctions to restrain publication in the course of business of all or part of the book or other statements by or attributed to Mr Wright on security matters, but to permit "a summary in very general terms" of his allegations. The members of the Court of Appeal considered that continuation of the injunctions would: serve to restore confidence in the Security Service by showing that memoirs could not be published without authority (Sir John Donaldson, Master of the Rolls); serve to protect the Attorney General’s rights until the trial (Lord Justice Ralph Gibson); or fulfil the courts’ duty of deterring the dissemination of material written in breach of confidence (Lord Justice Russell). The Court of Appeal gave leave to all parties to appeal to the House of Lords. 35.    After hearing argument from 27 to 29 July 1987 (when neither side supported the Court of Appeal’s compromise solution), the Appellate Committee of the House of Lords gave judgment on 30 July, holding, by a majority of three (Lord Brandon of Oakbrook, Lord Templeman and Lord Ackner) to two (Lord Bridge of Harwich - the immediate past Chairman of the Security Commission - and Lord Oliver of Aylmerton), that the Millett injunctions should continue. In fact, they subsequently remained in force until the commencement of the substantive trial in the breach of confidence actions on 23 November 1987 (see paragraph 39 below). The majority also decided that the scope of the injunctions should be widened by the deletion of part of the proviso that had previously allowed certain reporting of the Australian proceedings (see paragraph 19 above), since the injunctions would be circumvented if English newspapers were to reproduce passages from Spycatcher read out in open court. In the events that happened, this deletion had, according to the Government, no practical incidence on the reporting of the Australian proceedings. 36.    The members of the Appellate Committee gave their written reasons on 13 August 1987; they may be briefly summarised as follows. (a) Lord Brandon of Oakbrook (i) The object of the Attorney General’s actions against O.G. was the protection of an important public interest, namely the maintenance as far as possible of the secrecy of the Security Service; as was recognised in Article 10 para. 2 (art. 10-2) of the Convention, the right to freedom of expression was subject to certain exceptions, including the protection of national security. (ii) The injunctions in issue were only temporary, being designed to hold the ring until the trial, and their continuation did not prejudge the decision to be made at the trial on the claim for final injunctions. (iii) The view taken in the courts below, before the American publication, that the Attorney General had a strong arguable case for obtaining final injunctions at the trial was not really open to challenge. (iv) Publication in the United States had weakened that case, but it remained arguable; it was not clear whether, as a matter of law, that publication had caused the newspapers’ duty of non-disclosure to lapse. Although the major part of the potential damage adverted to by Sir Robert Armstrong (see paragraph 16 above) had already been done, the courts might still be able to take useful steps to reduce the risk of similar damage by other Security Service employees in the future. This risk was so serious that the courts should do all they could to minimise it. (v) The only way to determine the Attorney General’s case justly and to strike the proper balance between the public interests involved was to hold a substantive trial at which evidence would be adduced and subjected to cross-examination. (vi) Immediate discharge of the injunctions would completely destroy the Attorney General’s arguable case at the interlocutory stage, without his having had the opportunity of having it tried on appropriate evidence. (vii) Continuing the injunctions until the trial would, if the Attorney General’s claims then failed, merely delay but not prevent the newspapers’ right to publish information which, moreover, related to events that had taken place many years in the past. (viii) In the overall interests of justice, a course which could only result in temporary and in no way irrevocable damage to the cause of the newspapers was to be preferred to one which might result in permanent and irrevocable damage to the cause of the Attorney General. (b) Lord Templeman (who agreed with the observations of Lords Brandon and Ackner) (i) The appeal involved a conflict between the right of the public to be protected by the Security Service and its right to be supplied with full information by the press. It therefore involved consideration of the Convention, the question being whether the interference constituted by the injunctions was, on 30 July 1987, necessary in a democratic society for one or more of the purposes listed in Article 10 para. 2 (art. 10-2). (ii) In terms of the Convention, the restraints were necessary in the interests of national security, for protecting the reputation or rights of others, for preventing the disclosure of information received in confidence and for maintaining the authority of the judiciary. The restraints would prevent harm to the Security Service, notably in the form of the mass circulation, both now and in the future, of accusations to which its members could not respond. To discharge the injunctions would surrender to the press the power to evade a court order designed to protect the confidentiality of information obtained by a member of the Service. (c) Lord Ackner (who agreed with the observations of Lord Templeman) (i) It was accepted by all members of the Appellate Committee that: the Attorney General had an arguable case for a permanent injunction; damages were a worthless remedy for the Crown which, if the Millett injunctions were not continued, would lose forever the prospect of obtaining permanent injunctions at the trial; continuation of the Millett injunctions was not a "final locking-out" of the press which, if successful at the trial, would then be able to publish material that had no present urgency; there was a real public interest, that required protection, concerned with the efficient functioning of the Security Service and it extended, as was not challenged by the newspapers, to discouraging the use of the United Kingdom market for the dissemination of unauthorised memoirs of Security Service officers. (ii) It would thus be a denial of justice to refuse to allow the injunctions to continue until the trial, for that would sweep aside the public-interest factor without any trial and would prematurely and permanently deny the Attorney General any protection from the courts. (d) Lord Bridge of Harwich (i) The case in favour of maintaining the Millett injunctions - which had been properly granted in the first place - would not be stronger at the trial than it was now; it would be absurd to continue them temporarily if no case for permanent injunctions could be made out. (ii) Since the Spycatcher allegations were now freely available to the public, it was manifestly too late for the injunctions to serve the interest of national security in protecting sensitive information. (iii) It could be assumed that the Attorney General could still assert a bare duty binding on the newspapers, but the question was whether the Millett injunctions could still protect an interest of national security of sufficient weight to justify the resultant encroachment on freedom of speech. The argument that their continuation would have a deterrent effect was of minimal weight. (iv) The attempt to insulate the British public from information freely available elsewhere was a significant step down the road to censorship characteristic of a totalitarian regime and, if pursued, would lead to the Government’s condemnation and humiliation by the European Court of Human Rights. (e) Lord Oliver of Aylmerton (i) Mr Justice Millett’s initial order was entirely correct. (ii) The injunctions had originally been imposed to preserve the confidentiality of what were at the time unpublished allegations, but that confidentiality had now been irrevocably destroyed by the publication of Spycatcher. It was questionable whether it was right to use the injunctive remedy against the newspapers (who had not been concerned with that publication) for the remaining purpose which the injunctions might serve, namely punishing Mr Wright and providing an example to others. (iii) The newspapers had presented their arguments on the footing that the Attorney General still had an arguable case for the grant of permanent injunctions and there was force in the view that the difficult and novel point of law involved should not be determined without further argument at the trial. However, in the light of the public availability of the Spycatcher material, it was difficult to see how it could be successfully argued that the newspapers should be permanently restrained from publishing it and the case of the Attorney General was unlikely to improve in the meantime. No arguable case for permanent injunctions at the trial therefore remained and the Millett injunctions should accordingly be discharged. H. Conclusion of the Australian proceedings; further publication of Spycatcher 37.    On 24 September 1987 the New South Wales Court of Appeal delivered judgment dismissing the Attorney General’s appeal (see paragraph 21 above); the majority held that his claim was not justiciable in an Australian court since it involved either an attempt to enforce indirectly the public laws of a foreign State or a determination of the question whether publication would be detrimental to the public interest in the United Kingdom. The Attorney General appealed to the High Court of Australia. In view of the publication of Spycatcher in the United States and elsewhere, that court declined to grant temporary injunctions restraining its publication in Australia pending the hearing; it was published in that country on 13 October. The appeal was dismissed on 2 June 1988, on the ground that, under international law, a claim - such as the Attorney General’s - to enforce British governmental interests in its security service was unenforceable in the Australian courts. Further proceedings brought by the Attorney General against newspapers for injunctions were successful in Hong Kong but not in New Zealand. 38.    In the meantime publication and dissemination of Spycatcher and its contents continued worldwide, not only in the United States (around 715,000 copies were printed and nearly all were sold by October 1987) and in